CNN
—
Retired federal Judge J. Michael Luttig – considered a legal luminary in conservative circles – is joining with voting rights groups as a co-counsel in a Supreme Court case in order to persuade the justices to reject an obscure legal theory that has been promoted by supporters of former President Donald Trump.
Luttig played a key role in the run up to the January 6, 2021, US Capitol attack, advising then-Vice President Mike Pence’s legal team against claims from Trump allies like attorney John Eastman. Eastman had argued in a memo that Pence had the power to single-handedly block the certification of the election for Joe Biden.
Now, Luttig is working with voting rights groups in a new dispute that liberals fear could lead to the ability of rogue state legislators to act unchecked when it comes to rules concerning federal elections.
At issue is the so-called independent state legislature doctrine. Supporters of the theory say that state legislatures should be able to set rules in federal elections without being held in check by state constitutions either through interpretation by state courts or by the functioning of commissions created under state constitutional reforms.
“The independent state legislature doctrine was the centerpiece to Trump’s effort to overturn the 2020 election,” Luttig said in an interview with CNN on Wednesday.
“I have believed since January 6th that I had a responsibility to the country to explain why I rejected the theory in advising the vice president,” he said.
If the Supreme Court sides against Luttig and supporters in Moore v. Harper, it could fundamentally change the landscape of election law.
On the surface, the case before the justices presents a redistricting dispute out of North Carolina involving a lower court decision that invalidated the state’s congressional map. The court struck the map – calling it an illegal partisan gerrymander – and replaced it with a court-drawn map more favorable to Democrats.
Republican legislators from North Carolina are now asking the justices to reverse the lower court. They point to the Elections Clause of the Constitution that provides that rules governing the “manner of elections” must be prescribed in each state legislature.
Under the theory, they argue, state legislatures should be able to set rules with no interference from the courts.
Traditionally, legislatures have set ground rules for conducting an election, but have not acted alone or with the final word. Processes set in place have been subject to intervention by election administrators and state courts.
But the strictest reading of the independent state legislature theory says that state courts, when it comes to federal elections, must stay out.
The majority of the North Carolina Supreme Court, in ruling against the lawmakers, said that legislators do not have unlimited power to draw electoral maps. The state court acknowledged that redistricting is primarily delegated to the legislature but said it must be performed in “conformity with the State Constitution.”
The Republican lawmakers appealed to the US Supreme Court, arguing in court papers that the “text of the Constitution directly answers the question presented in this case.” The Elections Clause provides “unambiguous language” concerning the manner of federal elections and makes clear that the rules will be drawn by the legislatures.
On Wednesday, Luttig filed his side’s response on behalf of Common Cause, the North Carolina League of Conservation Voters and the Southern Coalition for Social Justice.
Luttig argued that the lawmakers’ interpretation of the Elections Clause “flouts” the Constitution’s most…
Read More: Retired Republican judge joins fight against ‘centerpiece’ of Trump’s effort to overturn election